Civil law guidelines

The following are examples of the types of circumstances where a breach of civil liberties may have occurred.

• the applicant is unlawfully searched, arrested, detained or imprisoned by a person in a special position of authority;
• the applicant is unlawfully threatened, hit, touched or physically handled by a person in a special position of authority;
• the applicant is imprisoned or detained by a person in a special position of authority and the condition of that detention or imprisonment are not authorised by law (relevant contexts could include a correctional centre, immigration detention or a mental health facility).

For the purposes of Civil law policy 4.4.2 Consumer protection matters – external dispute resolution, external dispute resolution (or EDR) means the external dispute resolution of a consumer claim or dispute using an EDR scheme. This includes, but is not limited to, EDR schemes run by the following organisations:

• the Financial Ombudsman Service (including its third party uninsured motor vehicle jurisdiction);
• the Credit Ombudsman Service;
• the Telecommunications Ombudsman Service;
• the Energy and Water Ombudsman Service;
• the Travel Compensation Fund;
• the Superannuation Complaints Tribunal;
• a government-based superannuation EDR process.

Funding is available under Civil law policy 4.4.2 Consumer protection matters – external dispute resolution, regardless of whether a claim has been through a company's Internal Dispute Resolution (IDR) process.

What is the At Social Disadvantage Test?

An applicant is ‘at social disadvantage’ if Legal Aid NSW is satisfied they are a person who is at significant risk of suffering social or financial detriment as a result of matters relating to their current or recent employment.

In assessing whether an applicant is at social disadvantage Legal aid NSW will consider factors including:

• the applicant’s level of financial vulnerability, and
• the applicant’s level of personal vulnerability, or
• whether the applicant is an Aboriginal person, a child or a victim of domestic violence or at risk of domestic violence.

For Legal Aid NSW to be satisfied the applicant meets the 'At Social Disadvantage’ Test, the applicant must satisfy the financial and personal vulnerability criteria set out in the ‘at social disadvantage' guidelines.

Financial vulnerability

In determining whether an applicant meets this aspect of the test, Legal Aid NSW must be satisfied that the applicant satisfies three financial vulnerability criteria, which include the applicant:

1. is in debt and they are unable to repay,
2. has to rely on a welfare agency for support (eg. Mission Australia, Anglicare or Centrelink),
3. has no savings that can be called upon,
4. has no access to credit from a bank, building society or credit union,
5. is behind or at risk of falling behind in rent or mortgage payments,
6. is in difficulty meeting utility payments such as electricity, water, phone or gas,
7. could not raise $2000 in a week for an emergency (eg. to fix a broken appliance).

Personal vulnerability

In determining whether an applicant meets this aspect of the test, Legal Aid NSW must be satisfied that the applicant satisfies three personal vulnerability criteria, including:

1. has an ongoing health condition or disability,
2. has unstable/temporary housing,
3. has very poor ability to communicate in English,
4. has a low level of education, literacy, training or skills,
5. is at risk of long term unemployment,
6. has a criminal record,
7. lives in a suburb that has high levels of disadvantage and unemployment,
8. is fifty five (55) years of age or over,
9. is under twenty five (25) years of age.

Or other disadvantage

The applicant will satisfy this aspect of the guidelines where the applicant is:

• an Aboriginal person,
• a child, or
• a victim of domestic violence or at risk of domestic violence.

In the event a lump sum grant is provided for a public interest matter or a test case, the indemnity under s 47 of the Act will apply to the lump sum grant, unless exceptional circumstances exist.

Legal Aid may be available for an NDIS matter in the Administrative Review Tribunal (ART) where a Grants Officer decides that:

• there is a significant likelihood that legal representation will lead to wider community benefit; or
• the applicant is experiencing disadvantage and would likely realise a substantial benefit from legal representation; and
• the matter meets the Merit Test.

4.9.1 Wider community benefit

The factors to which a Grants Officer may have regard in making a decision that a matter will lead to wider community benefit, may include, but are not limited to, the following:

Factors relating to the National Disability Insurance Scheme Act 2013 (NDIS Act) and rules

(a) Whether interpretation or application of a provision under NDIS Act, or rules made under the NDIS Act (rules):

• has been considered and fully addressed by the ART or a court;
• is not comparable to another provision that has been considered and fully addressed by the ART or a court;
• is not well understood or does not have an obvious meaning, including where there is ambiguity.

(b) The evidence base (including where there is limited or no evidence base) in relation to a disability, therapy or support.

Factors relating to the administration of the National Disability Insurance Scheme (NDIS)

(c) Whether a decision in relation to the matter:

• will clarify an uncertain or contentious area of law in relation to the NDIS Act or rules or the application of policy;
• will resolve an important question of law arising under the NDIS Act or rules;
• may result in improvements or beneficial changes to the administration of the NDIS;
• is likely to affect a significant number of participants in the NDIS.

4.9.2 Whether a person experiencing disadvantage would likely realise a substantial benefit from legal representation

In deciding whether a person experiencing disadvantage would likely realise a substantial benefit from legal representation, the LAC may consider:

• the applicant’s capacity to self-represent;
• the applicant or family/carer’s ability to access support to self-represent;
• the availability of other sources of legal assistance.

The Grants Officer may determine the weight to be given to relevant factors.

The following are guiding principles for determining whether the 'public interest' requirement is satisfied:

• Public interest is something of serious concern common to the public at large or a significant section of the public, such as a disadvantaged or marginalised group.
  
• For something to be of 'public interest' it must amount to more than a private right or individual interest, although the two may coincide.
  
• For something to be of 'public interest', it must amount to more than something merely 'of interest to the public', although again, the two may coincide.
  
• There may be competing public interests in any one case that have to be weighed against each other.
  

Where the applicant is 'at special disadvantage'

An applicant is at special disadvantage if they are:

• a child or acting on behalf of a child, or
• a person who has substantial difficulty in dealing with the legal system by reason of a substantial:
  • mental health impairment 
  • cognitive impairment, or
  • physical disability.

Applying the 'at special disadvantage' test

The determination about whether the applicant satisfies the 'at special disadvantage' test must be made in the context of legally aided clients generally. In other words, a practitioner certifying that an applicant is 'at special disadvantage' must be satisfied that the applicant's circumstances are exceptional when considered against other legally aided clients.

For applicants to be deemed 'at special disadvantage', they must satisfy the two limbs of the test; that is, they must have substantial difficulty dealing with the legal system because of a substantial disability.

For Legal Aid NSW to be satisfied that a matter raises a significant human rights issue, one or more of the following criteria must be satisfied:

• the applicant would be at risk of persecution or death if returned to their country of origin,
• it is in the best interests of the child or children because it is clearly the child or children who will suffer if the applicant is deported, or
• the applicant has either:
  • substantial mental health problems,
  • significant cognitive difficulties, or
  • a significant physical difficulty, and
    if deported back to their country of origin, would be denied significant family support.